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The Reauthorization That Never Was

How “waivers” will hurt states and schools.

As a new congress ramps up and the second Obama administration begins, I can’t help but wish that reauthorizing No Child Left Behind was one of the first orders of business. But it’s not.

By the time the Obama administration came into office in 2009, the arguments for doing something about NCLB—including waivers—had already begun. “From day one, we had people at the state and local level asking us for waivers,” a top Education Department official told me.

The 2002 NCLB law was already increasingly clunky. So-called AYP failure rates were rising steadily, including those of suburban and rural schools that weren’t used to (and didn’t much like) being told they weren’t standouts in every regard.

By and large, the Duncan Education Department seemed to go along with the idea that NCLB was a looming disaster, projecting much higher failure rates than actually came to pass in most states and districts, and claiming that NCLB encouraged states to compete by “racing to the bottom” with lower state standards when the reality was that half of them actually ratcheted standards up under NCLB.

And so, during 2011 and 2012, when Congress was doing its usual song and dance about passing a major piece of legislation, the Obama administration floated and then went ahead with something called NCLB “waivers” through administrative regulations, thereby bypassing Congress and dampening much of the momentum behind a full reauthorization.

The decision to go ahead with waivers made some lawmakers and advocates unhappy, but for most states and districts it seemed like a good alternative to continuing to labor under the “old” NCLB and waiting for Congress to get its act together.

But still, things could have­—should have—been different, and I’d argue states and districts would be better off in the long run (if not as comfortable) if they were.

“The waivers are a complete disaster and will weaken accountability in ways that will be felt for years, if not decades,” commented an anonymous Washington insider in a recent monthly roundup of insider views conducted by Bellwether Education Partners.

Under the waivers, states and districts no longer have to report out and rate all schools the same way, or even report out individual subgroup accountability figures. Essentially, it’s a “get out of jail free” card for most districts and schools—or (to keep the metaphor going) a prison home-visit program that relies on the honor system.

Why should anyone outside of Washington care? Why, exactly, should districts and states prefer a world without waivers?

• The waiver setup doesn’t provide a stable landscape of federal rules for schools to work with. The Obama administration and any subsequent occupant of the White House can (and probably will) change the rules just as quickly as Team Obama did, without hearings or an open rule-making process.

• The funding increase that usually accompanies a comprehensive rewrite of a law isn’t likely to appear next year or the year after, and may have been bypassed along with the reauthorization process.

• While they will require a ton of work to implement, the waivers will also limit cooperation and comparisons among states even more than under NCLB. Such comparisons go from difficult to nearly impossible.

If the Obama administration had waited, or if Congress had made clear that it wouldn’t stand by and see its responsibilities usurped, the moment would be ripe. New members on the House and Senate education committees would bring new energy, and a Congress fresh off the election and the fiscal cliff would be primed to pass—and fund—a domestic policy initiative it could call its own.